*1 1192 personalty payment of
The is the fund for the it decedent, relieved, the intention to relieve and, debts be Brackey, appear affirmatively in In must the will. re Estate of 109, 113, 188, 190; Lepley, 166 Iowa In re 147 N.W. Estate Jur., 664, 671, 526, 235 Iowa 529. See also 57 Am. 17 N.W.2d Annota Wills, 1468; S., Wills, 1322; section 97 C. section J. 2 tion, A. L. R.2d 1310. presumed
It law and made his must be testator knew the 1378, Kielsmark, light will in the In 188 Iowa thereof. re Will 1386, 690, 693, 156; Harvey Clayton, 11 v. 177 N.W. A. L. R. 25, 29; Paulson, 206 Iowa 220 246 Iowa N.W. Benz 1005, 1013, Fritz, 70 574; N.W.2d Nicholson v. 897, 898, 226, 229, 109 N.W.2d and citations. easily payment if he so
Testator could have directed ratable nothing find desired. We the will which manifests such intent. principle The or IV. doctrine of contribution one equality bearing Fitzgerald, common burden. Lovrien v. 1325, 1330, Am. 458, 462, citations; 66 N.W.2d Jur.2d, Contribution, pointed sections 7 and 8. As we have places debts, paying charges out the law the burden of and costs application of personalty. We find no basis for here on equitable doctrine contribution. appealed from is—Affirmed. order
All Justices concur. Davis, Iowa, appellee, appellant. v. William I.
No. 51532. (Reported 925) in 140 N.W.2d *2 8, 1966. March Rehearing May 3, 1966. Denied Matt Walsh, Bluffs, of Council for appellant. Scalise,
Lawrence F. Attorney General, Bennett, Don R. Attorney General, Assistant Kraschel, and Fred J. Pottawat- County tamie Attorney, appellee. robbery J. Defendant was
Thornton, convicted in vio- 711.2, lation of Code, 1962, pursuant section and sentenced of sec- forty years, than the violation section 747.1 to not more specified in a crime being tion 711.2 his fourth conviction of section 747.1. twice in the district court. On
This case has been tried only, robbery guilty first trial the returned verdict of finding had established jury apparently not the State trial and new prior convictions. Defendant moved granted. On the second motion robbery respectively again of and answered “Yes” defendant they inquiring found defendant interrogatories three whether al- previously convicted of the felonies was the leged. to dismiss all the second trial defendant moved
Prior to
robbery
paragraph charging him with
except
indictment
acquitted
had
a habitual
because he
been tried and
double
try
again
him
this matter would be
criminal
on
*3
rights.
in
Defendant
jeopardy
of his constitutional
violation
prior convictions on the same
objected to the evidence of the
county attorney
including the
the indictment
ground. The
read
of
jury at
the
prior convictions to the
the commencement
copies
prior
of the
in evidence the authenticated
and introduced
objection.
convictions over defendant’s
urges
propositions for reversal here—
I. Defendant
two
in that
did
process
denied
of law
he
not
(1) that he was
due
county attorney
impartial
a fair and
trial because the
receive
part
alleging the
permitted to read the
of the indictment
by
in
convictions,
(2)
placed
jeopardy
and
he was
double
prior
a
criminal.
trying him the second time as
habitual
against defendant
proposition
The first
has been decided
held
Griffin,
in
Defendant insists he was a habitual course, criminal This, verdict the first trial. impossible. acquitted penalty He could be of a nor could he be so convicted. He was offense. jury in against The failure of the the first trial to find him as *4 prior to does not remove the convictions them. The elements of crimes, necessary not prove such, those the evidence to were jury. questions prior the con before The before the as a are, prior present victions was there and is de conviction the Eichler, 248 fendant the identical so v. convicted? State supra, page 1271. Gaskey, In supra, urged imposition State v. the defendant penalty provides of the against section 747.1 one who has been process. argued sentenced under section 747.5 violates due It was 1196 being punished- in same of-
this defendant twice the results pun- pointed there defendant was twice fense. We out primary- being punished same for the ished for the offense. He is prior offense and because of his convictions received a more' penalty. severe authority Chamineak, the State
Another cited is State 153, 162, there, like Mo. Sup., 343 S.W.2d 163. The defendant here, the twice. The time he was con defendant tried first primary offense, finding the no victed of but the made in regard granted to the The defendant a new conviction. the again trial. On second trial of the- he was offense and sentenced as a habitual Defendant there criminal. made the same are contentions as made here. Missouri Su preme said: Court jury, if
“Even the action the which of defendant contends ‘acquittal’ amounted to charge have in indict- an previous conviction, ment of a occurred in trial other than previous offense, previous same con- issue judicata. Sup., viction is not res v. O’Brien, Mo. 252 S.W. ,U. 357; 2d denied 345 73 L. S. S. Ct. 97 Ed. certiorari 1359.”—Affirmed.
(cid:127) All Justices concur except Mason and who Rawlings, JJ., dissent Division from I affirmance. concur in (dissenting) what is said Divi- Mason, J. —I majority opinion.
sion II of However, what because is the. given said- and the affirming reasons I, the case Division I dissent. n In majority say this Division the con- defendant’s first against tention has been decided him holding in State v. Griffin, 135 my opinion N.W.2d 77. In chapter Sixty-first of the Laws Assembly, simply a codi- fication of existing an right constitutional a fair trial. case,
In supra, page the Griffin at Iowa, 855 of page N.W.2d, the court said: ' majority “A of the members this are opinion court of the the proposed procedural change, while meritorious and- repre- *5 senting procedure in proper cases, the modern view on these Assembly should not be made us while the consid- ering legislation adopted by similar corrective to that statute in only a number of states. This view is based not on the General Assembly’s present problem consideration of but because question process of denial of due is not reached.” legislature session when the Griffin ease argued chapter before the court and what is now 444 was then being considered. The court then no determined there was denial process. agree due I do would because of the reverse procedure por- followed reading relating tion of the indictment convictions. joins J., in this dissent.
Rawlings, Roy Joseph appellant, appellee. T. Houlahan, Brockmeier, No. 51971. (Reported 545, 924) in 141 N.W.2d